The timing issue on health care

The scattered schedule that lawyers have followed in filing appeals on the constitutionality of the new federal health care law has contributed to the creation of a puzzle for the Court to work out in deciding when, and how, to treat the cases. It now appears that, if the Court wants to wait and act on all six appeals that have now been filed, at the same time, it probably would not consider them until its Conference of December 9. That would be due mainly to the fact that the latest of the six cases has just come in, and almost certainly would not be passed around to the Justices before that Conference.

That outlook is the product both of the timetable the lawyers followed in filing, as well as the Court’s own internal schedule for distributing the papers in new cases to the Justices’ chambers for their initial consideration. Under that schedule, cases are distributed well in advance of the Conference at which they will actually be considered by the Justices together.

The first of the health care petitions was filed on July 26. That case (Thomas More Law Center v. Obama, docket 11-117), is now actually ready for distribution to the chambers, but that has not been done yet. The latest of the filed cases (Liberty University v. Geithner (11-438)) reached the Court just last Friday. In the normal course, it would not be likely to be passed to the Justices until November 22, when the first cases for the December 9 Conference are circulated.

Under the Court’s Rules, 30 days are allotted for the other side to file a response to a newly filed case. That period can be extended, usually for 30 days, if the other side asks for more time to respond. Once that response has come in, the Court’s Clerk will not distribute the case to the chambers for at least ten days.

To see how that works, consider the outlook for the timing for two of the health care cases: the first filed, and the last filed.

In the Thomas More case, the Obama Administration’s brief in response was originally due on August 29. It got an extension, and the brief was then filed on September 28. The next opportunity for it to be ready for distribution was ten days later — that is, on October 6. But the next available distribution date on the Court’s schedule was October 12, for the Conference of October 28. It did not get distributed for that Conference, however.

Now take the most recent, the Liberty University case. The Administration’s brief in response is not due until November 10. Ten days after that would be November 20. But the next distribution date would be November 22, for the December 9 Conference.

A cluster of three of the cases reached the Court closer together: two on October 28, and one on October 31. Those are the three cases that some observers think are most likely to be assured of Supreme Court review: all sides in those cases want review, they involve a lower court ruling (by the Eleventh Circuit Court) striking down the health care law’s key provision, the insurance mandate, and that ruling created a conflict in lower court decisions on the law. But the three-day difference between their filing dates actually would indicate that, if considered singly, they would not be distributed together.

The earliest that two of the cases (a business group’s appeal, and the Administration’s) would normally be distributed would be November 7, for the Conference of November 22. But the earliest that the third case (an appeal by 26 states) would be distributed would be November 14, for the Conference of December 2.

The other case (the fifth to be filed) was the state of Virginia’s petition (docket 11-420), and the government response in that is now due on November 3. In the normal course, it would be distributed on November 14 for the December 2 Conference.

The Justices have complete discretion about the order in which they consider the cases, once they have been distributed — a routine step by the Clerk’s office. Outsiders do not know what will influence those choices. But, if one or more of the cases actually does get distributed, and the Justices go ahead and consider it, that might be a clue that it is not going to deal with them as a complete batch.

Even if none of the cases gets distributed until all are ready — say, for the December 9 Conference — that would be in plenty of time for the Court to agree to rule on the cases, and to set any granted cases for oral argument. The rule of thumb that the Court usually follows is that any case that is granted by the middle of January is almost sure to be decided during that Term of the Court.